Senior Citizens Act - Section 23 Can't Be Invoked If Release Deed Is For Consideration : Karnataka High Court

A single bench of Justice Hemant Chandanagoudar allowed the petition filed by two medical practitioners challenging the order dated 26/6/2020 passed by the Assistant Commissioner (Dharwad), whereby the release deed dated 11/7/2018, executed by the respondent No.2 (Suma) in favour of the petitioners is cancelled.

Case Background:

The respondent No.2, who was the owner of the property bearing No.HYG 307/2 Municipal No.HDMC 12776 situated at Nagarakar colony, Mahishi road, Dharwad executed a release deed, releasing the property in question in favour of the petitioners and the said release was subject to payment of Rs.8,30,000 to the 2nd respondent and Rs.1,70,000 to the sister of respondent No.2.

After executing the release deed and acknowledging the receipt of the amount, the 2nd respondent filed a petition under Section 23 of the Act seeking for cancellation of the release deed, contending that the petitioners failed to maintain the respondent No.2. The 1st respondent exercising power under Section 23 passed the impugned order canceling the release deed on the ground that it was executed by coercion and misrepresentation.

Submission of the petitioners:

Senior Advocate Gurudas Kannur submitted that "Provision of Section 23 of the Act is not applicable to the facts of the case, since there is no clause which provided for maintenance of the respondent No.2 by the petitioners and also the property in question was released in favour of the petitioners subject to payment of consideration. The impugned order passed by the respondent No.1 is without authority of law.

He relied on the decision of the co-ordinate Bench of Karnataka High Court Court in WP No.52010/2015 (DD 26.2.2019) and the decision of the Full Bench of Kerala High Court in the case of SUBHASHINI V/S.DISTRICT COLLECTOR, KOZHIKODE.

Petition opposed by respondent 2.

The counsel for respondent 2, submitted that even in the absence of condition, the transferee shall provide basic amenities and physical needs to the transferor and the Respondent No.1 in the absence of such condition can exercise the power under Section 23 to declare the release deed as void, when the transferee has failed to maintain the transferee. Reliance was placed on the decision of the division bench of Punjab and Haryana High Court in the case of Smt.Raksha Devi V/s. Deputy Commissioner-cum-District Magistrate, Hoshiarpur and others in CWP.No. 5086/2016.

Court findings:

The court noted the decision relied by respondent No.2 in the case of Smt.Raksha Devi supra was considered by the Full Bench of Kerala High Court in the case of SUBHASHINI supra, wherein, it is held that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the documents of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer.

It said "In the instant case, there is no condition specifying that the transferee has to provide basic amenities and physical needs to the respondent No.2."

Further, it said "In the case it is held that condition referred in Section 23 has to be understood based on the conduct of the transferee and not with reference to the specific stipulation in the deed of transfer, condition mentioned in Section 23 is only referable as a conduct of the transferee, prior to and after execution of the deed of transfer, and as such a challenge based on the ground that there is no reference to recital in the deed of transfer is of no consequence."

It added "Even assuming for a moment, in the absence of condition specified in Section 23, it is implied that the transferee is under an obligation to provide basic amenities and physical needs to the transferor in view of the objective and scheme of act, the decision in the case of Smt.Raksha Devi is not applicable to the facts of the case, since the release of property in favour of the petitioners was not out of natural love and affection but for consideration and the Respondent No.2 having acknowledged the receipt of the said consideration cannot invoke the jurisdiction under Section 23 for declaring the release deed as void."

Accordingly, the court quashed the order dated June 26, 2020 and the claim petition filed under section 6 of the Act by the respondent 2.

Also Read : Senior Citizens Act : Is Express Condition To Provide Basic Amenities To Parents Necessary In Transfer Need To Attract Action Under Section 23?Supreme Court To Examine